The Federal Medical & Family Leave Act recently celebrated its 20th anniversary.  The measure, which covers about 25 percent of the workforce, allows permanent employees with companies of 50 or more employees to take time off for medical-related reasons. It was enacted 20 years ago in February 1993 and took effect six months later, for most covered employers and a year later for those with existing collective bargaining agreements.

The measure has been slightly modified over the years, supplemented by regulations issued by the Department of Labor, which oversees the measure.  But it still remains, by and large, intact from its original framework.

The FMLA has spurred a number of mini FMLA measures in about two dozen states and other local jurisdictions.  Minnesota does not have its own mini FMLA, but has a number of other leave laws that provide a modicum of leave for employees in various circumstances, although not as extensive as the FMLA.

The FMLA has been successful, with 1-in-6 workers using it from its inception, and a  greater percentage of covered employees since that time. A recent report by the Labor Department found satisfaction on the part of employers, favorable with more than 90 percent of those surveyed reporting no noticeable negative effects on their business operations.

But three employees were not in a celebratory mood as the FMLA neared its two decade anniversary. They each suffered setbacks on their FMLA cases in rulings by the 8th Circuit Court of Appeals, including one that was, ironically, issued on the day of the 20th anniversary of the law.

Notice nuance

The nuances relating to notice that employees generally are required to give before taking a leave under the statute were reflected in Bosley v. Cargill Meat Solutions Corporation, 2013 WL 425354 (8th Cir. Feb. 5, 2013).  The case was brought by a former employee at an Iowa facility of Minnesota-based Cargill, who was terminated after she missed work for health issues over a month, and failed to use the company’s call-in procedure for absences or notify management that she started a leave under the FMLA.

Her claims for violation of her rights under the FMLA for improper retaliation were dismissed by the trial court and the 8th Circuit affirmed.  At the time of the discharge, which occurred five years ago, the Labor Department regulations called for an employee to give notice to an employer of need for FMLA leave “as soon as practicable,” usually within one or two working days from the time the employee becomes aware of the need for a leave.  The 8th Circuit has adopted a “rigorous notice standard,” imposing upon employees an “affirmative duty” to indicate both the need and the reason for the leave as well as apprising the employer “when they anticipate returning to their position.”

The employee did not satisfy any of these requirements. She failed to make contact with the company after she last called in sick. There were no “extraordinary circumstances to justify her delay” in notifying the employer of the need for an FMLA leave.  The employee’s claim that notice was given through a co-worker was defeated by the “equivocal and self-contradictory” recollections of what that employee told management.  Thus the employee provided insufficient evidence that she gave adequate notice to invoke FMLA rights.

Nor was there any basis for a retaliation claim.  Because the employee did not give notice of her FMLA leave until after her company “had terminated her employment,” the discharge could not have been contributory.

Retaliation rejected

Another retaliation claim under the FMLA was rejected in Brown v. City of Jacksonville, 711 F.3d 883 (8th Cir. March 29, 2013).

A short term municipal employee, who had taken FMLA leave in fall 2008, was fired the following spring after a series of incidents involving poor performance and creation by her of a hostile work environment for co-workers.  Her claim that her discharge was retaliatory for exercising her rights under the FMLA was rejected, as were her claims of age and disability discrimination.

The claimant failed to establish a prima facie case of violation of the FMLA because there was no evidence of a “causal connection” between her taking a leave of absence and the subsequent discharge.  The employee was told by a supervisor of her “unsatisfactory job performance” before she took an FMLA leave, and other employees concerning the “negative” presence of her in the workplace. Because there was insufficient evidence that the performance concerns were pretextual and no indication that the discharge was a reprisal for the leave of absence, summary judgment was appropriate in the case was properly dismissed.

Dispatcher decision

A dispatcher for an over-the-road trucking carrier lost a large award of front pay in Dollar v. Smithway Motor Xpress, Inc., 710 F.3d 798 (8th Cir. March 27, 2013).  The dispatcher, who had been promoted to a recruiter position, took FMLA leave for a series of medical problems, during a particularly busy time for the business.  She expressly requested FMLA leave, but was not offered an opportunity to take time off or given any forms to be filled out by her doctor.  The trial court ruled in her favor, and awarded a total of nearly $300,000 in damages for violation of her FMLA rights and included 3-1/2 years of back pay, liquidated damages, and front pay for 10 years. The 8th Circuit Court decided the back pay award appropriate, but not the front pay due to the “unique” features of the case. The employee had not worked for as much “as a single day” in a new position that she had been transferred to prior to her discharge, but had been unable to perform because of her medical condition.  It was “speculative” whether she would be able to perform in a new position as a driver recruiter, and her capacity to perform in this “wholly untested job was the claimant’s own personal, subjected belief.”  The employee’s lack of experience in the new job, along with changes in the company’s practices, made the award of front pay “unusually speculative.”  The “equitable nature” for front pay, coupled with the “peculiar” facts in the case, required vacating the award of front pay.  Taking away the front pay effectively reduced the award by approximately half, leaving both sides feeling as though Solomonic justice may have been achieved.

Although widely viewed as successful, the FMLA does not always work the way employees would like. As this trio of cases reflects, obstacles must often be obviated in order to effectuate their rights under the statute.

Perspective Pointers:

Some Minnesota state leave laws

  • Sick or injured child: Personal sick time to care for sick or injured child;
  • Parental leave: Up to six weeks for birth or adoption of a child;
  • School activities: Maximum of 16 hours of leave to attend children’s school activities;
  • Election leave: Time off to vote for elections;
  • Military leave: 15 days paid leave for public sector workers.

Originally published in the 7/15/2013 edition of MinnLawyer.